Judicial modesty is a permanently depreciating currency on the Ninth Circuit, so it would be premature, less than two weeks into January, to describe a decision emanating therefrom as its most arrogant and indefensible of the year. Some judge out West will try to outdo it, and probably will. But for institutional overreach accomplished on the basis of bizarre constitutional reasoning, it will take effort to top Judge William Alsup's preliminary injunction preventing the Trump Administration from undoing the Deferred Action for Childhood Arrivals, or DACA, program.
Alsup's argument amounts to this: Because the Obama Administration had the constitutional discretion to implement the program unilaterally, the Trump Administration lacks the constitutional discretion to revoke it unilaterally. The reasoning is as predictable as it is insidious: The Trump Administration made a constitutional judgment against the program, and such judgments belong to the judicial branch alone.
Read Full Article »